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You can name a perfume “Opium” and an energy drink “Cocaine,” and no one will stop you, Greg Beato writes in the latest issue of Reason Magazine.  But try to promote a new craft beer with the slogan “try legal Weed” (the beer in question happens to be made in the small town of Weed, California), and you will face a legal roadblock from the Alcohol and Tobacco Tax and Trade Bureau (TTB).

It should go without saying that it’s perfectly legal (and protected under the First Amendment) to make drug references.  So why does one government agency (the FDA) let such references go while the TTB clamps down on them?

Beato’s article suggests that Congress has seen alcohol and tobacco as being more taboo and thus meriting more regulation.  The article quotes Robert Lehrman, an attorney who has dealt with the TTB, who raises this hypothetical dilemma: “What would you do if somebody handed you, I don’t know, Hannah Montana beer, and said, ‘Please approve this’?”

Now I’m all for helping the kids; I think that something should be done to stop companies that sell alcohol and tobacco from targeting children.  But I do not think that the TTB, an organization that reviews more than 100,000 labels each year, is the proper mechanism.

We all remember Joe Camel, the friendly cartoon camel who, from 1987 to 1997, graced advertisements for Camel cigarettes.  Joe Camel is a good example of the proper way to police this sort of behavior.  It was not government oversight through the TTB or any similar organization that brought down Joe Camel, but rather the pressure of a private lawsuit that eventually led Camel to voluntarily pull the ads.

The various drug references, crude jokes, and bared breasts that are excised from product packaging under the watchful eye of the TTB are, by and large, most likely quite innocuous.  There’s no indication that a microbrewery in California whose labels read “try legal Weed” is going to have anywhere near the sway with children that Camel did.  (A 1991 survey showed that more 5 and 6 year olds recognized Joe Camel than Mickey Mouse or Fred Flintstone.)  Much better then, as in the Camel case, to deal with these social problems through private litigation once they actually arise than to censor businesses before their products hit the shelves.

Daniel Corbett

July 2008
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